Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830)

U.S. Supreme Court

The testator gave all the rest and residue and remainder of his estate, real and personal, comprehending a large real estate in the City of New York, to the Chancellor of the State of New York and Recorder of the City of New York, &c. (naming several other persons by their official description), to have and to hold the same unto them and their respective successors in office to the uses and trusts, subject to the conditions and appointments declared in the will, which were, out of the rents, issues, and profits thereof to erect and build upon the land upon which he resided, which was given by the will, an asylum or marine hospital to be called "the Sailor's Snug Harbor," for the purpose of maintaining and supporting aged, decrepid, and worn out sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring that the institution created by his will should be perpetual, and that those officers and their successors should forever continue the governors thereof, &c., he adds

"It is my will and desire that if it cannot legally be done according to my above intention by them, without an act of the legislature, it is my will and desire that they will as soon as possible apply for an act of the legislature to incorporate them for the purpose above specified, and I do further declare it to be my will and intention that the said rest, residue, &c., of my estate should be at all events applied for the uses and purposes above set forth, and that it is my desire all courts of law and equity will so construe this my said last will as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified."

Within five years after the death of the testator, the Legislature of the State of New York, on the application of the trustees, also named as executors of the will, passed a law constituting the persons holding the offices designated in the will, and their successors, a body corporate, by the name of "the Trustees of the Sailor's Snug Harbor," and enabling them to execute the trusts declared in the will.

This is a valid devise to divest the heir of his legal estate, or at all events to affect the lands in his hands with the trust declared in the will.

If, after such a plain and unequivocal declaration of the testator, with respect to the disposition of his property, so cautiously guarding against and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. If this intention cannot be carried into effect precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative which, with the aid of the act of the legislature, must remove every difficulty.

In the case of The Baptist Association v. Hart's Executors, 4 Wheat. 27, the Court considered the bequest void for uncertainty as to the devisees, the property vested in the next of kin, or was disposed of by some other provisions of the will. If the testator in that case had bequeathed the property to the Baptist Association, on its becoming thereafter and within a reasonable time incorporated, could there be a doubt but that the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund?

Whenever a person by will gives property and points out the object, the property, and the way in which it shall go, a trust is created unless he shows clearly that his desire expressed is to be controlled by the trustee and that he shall have an option to defeat it.

What are the rights of the individuals composing a society and living under the protection of the government when a revolution occurs, a dismemberment takes place, and when new governments are formed and new relations between the government and the people are established? A person born in New York before 4 July, 1776, and who remained an infant with his father in the City of New York during the period it was occupied by the British troops, his father being a loyalist and having adhered to the British government and left New York with the British troops, taking his son with him, who never returned to the United States, but afterwards became a bishop of the Episcopal Church in Nova Scotia; such a person was born a British subject, and continued an alien, and is disabled from taking land by inheritance in the State of New York.

If such a person had been born after 4 July, 1776, and before 15 September, 1776, when the British troops took possession of the City of New York and the adjacent places, his infancy incapacitated him from making an election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority, which never having been done, he remained a British subject, and disabled from inheriting land in the State of New York.

The rule as to the point of time at which the American ante nati ceased to be British subjects differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is to take the date of the Treaty of Peace in 1783. Our rule is to take the date of the declaration of independence.

The settled doctrine in this country is that a person born here, but who left the country before the declaration of independence and never returned here, became an alien and incapable of taking lands subsequently by descent. The right to inherit depends upon the existing state of allegiance at the time of the descent cast.

The doctrine of perpetual allegiance is not applied by the British courts to the American ante nati, and this Court in the case of Blight's Lessee v. Rochester, 7 Wheat. 544, adopted the same rule with respect to the rights of British subjects here. That although born before the Revolution, they are equally incapable with those born subsequent to that event of inheriting or transmitting the inheritance of lands in this country.

The British doctrine therefore is that the American ante nati, by remaining in America after the peace, lost their character of British subjects, and our doctrine is that by withdrawing from this country, and adhering to the British

government, they lost, or perhaps more properly speaking, never acquired the character of American citizens.

The right of election must necessarily exist in all revolutions like ours, and is well established by adjudged cases.

This Court, in the case of McIlvaine's Lessee v. Coxe, 4 Cranch 211, fully recognized the right of election, but they considered that Mr. Coxe had lost that right by remaining in the State of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she declared him to be a member of, and in allegiance to the new government.

Allegiance may be dissolved by the mutual consent of the government and its citizens or subjects. The government may release the governed from their allegiance. This is even the British doctrine.

C.B. by her last will and testament devised

"all her estate, real and personal, wheresoever and whatsoever in law or equity, in possession, reversion, remainder, or expectancy, unto her executors and to the survivor of them, his heirs and assigns forever,"

upon certain designated trusts, under the statute of wills of the State of New York, 1 N.Y. Revised Laws 364, all the rights of the testator to real estate, held adversely at the time of the decease of the testator, passed to the devisees by this will.

It is the uniform rule of this Court with respect to the title to real property, to apply the same rule which is applied instate tribunals in like cases.

The right of an absent and absconding debtor to real estate held adversely, passed to and became vested in the trustees by the act of the Legislature of New York, passed April 4, 1786, entitled "An act for relief against absconding and absent debtors."

In a writ of right the tenant may, on the mise joined, set up a title out of himself and in a third person. If anything which fell from this Court in the case of Greene v. Liter, 8 Cranch 229, can be supposed to give countenance to the opposite doctrine, it is done away by the explanation given by the court in Greene v. Watkins, 7 Wheat. 31. It is there laid down that the tenant may give in evidence the title in a third person for the purpose of disproving the demandant's seizin; that a writ of right does bring into controversy the mere right of the parties to the suit; and if so, it by consequence authorizes either party to establish by evidence that the other has no right whatever in the demanded premises, or that his mere right is inferior to that setup against him.

In a writ of right on the mise joined on the mere right, under a count for the entire right, a demandant may recover a less quantity than the entirety.

This case came before the Court at January term 1820, from the Circuit Court of the United States for the Southern District of New York on points of disagreement certified by the judges of that court. After argument by counsel, it was held under advisement until the present term.

It was a writ of right brought in the circuit court for the recovery of certain real estate situate in the City of New York whereof Robert Richard Randall died seized and possessed.

The count was upon the seizin of Robert Richard Randall, and went for the whole premises.

Paul R. Randall and Catherine Brewerton, a brother and sister of Robert Richard Randall, both survived him, but had since died without issue.

The demandant claimed his relationship to Robert Richard Randall, through Margaret Inglis, his mother, who was a descendant of John Crooke, the common ancestor of Robert Richard Randall, Catherine Brewerton, and Paul R. Randall.

The tenants put themselves upon the grand assize, and the mise was joined upon the mere right.

The cause was tried at October term, 1827.

The counsel for the tenants began with the evidence, and showed that they had been in possession for a number of years, claiming and holding the land as owners.

The seizin of Robert Richard Randall was then proved, and that he purchased from one Baron Poelnitz. The genealogy of the demandant as next collateral heir of Robert R. Randall on the part of his mother, and that the blood of Thomas Randall, the father of Robert Richard Randall, was extinct, was proved.

It was in evidence that the British troops entered into New York on 15 September 1776, and took and had full possession thereof, and of the adjacent bays and islands, and established a civil government there under the authority of the British commander in chief.

Evidence was given to prove that the demandant was not more than one year old when the British troops entered the City of New York, where he was born; that the father of the demandant was a native of Ireland, and had resided for some time in New York, and continued to reside there until he left there for England on the day of or the day before the evacuation of New York 25 November, 1783. He took the demandant with him to England, remained there two years, was appointed a bishop, and went to Nova Scotia in 1785 or 1786, and there resided until his death. The mother of the demandant died in New York on 21 September, 1783, a little while before the evacuation thereof by the British troops. It was always considered by a witness

who testified in the cause, that Charles Inglis, the father of the demandant, was a royalist. The demandant was certainly born before the year 1779; in 1783 he could not speak plainly, and was considered not more than five years old, between four and five. He took his degree of master of arts in England, was there ordained a clergyman; his place of residence from the time he first arrived at Nova Scotia was with his father, and he has continued to reside there ever since. He went to England to be consecrated a bishop, which character he now holds, being bishop of Nova Scotia. Charles Inglis, the father of the demandant, had four children, the eldest of which, a son, died an infant, 20 January, 1782, two daughters, and the demandant, who was the youngest child.

The following proceedings of a convention of the State of New York, before the British entered the city, were in evidence.

"Tuesday Afternoon, July 16, 1776"

"Present, general Woodhull president, and the members of the convention."

"Whereas, the present dangerous situation of this state demands the unremitted attention of every member of the convention:"

"Resolved unanimously that the consideration of the necessity and propriety of establishing an independent civil government be postponed until the first day of August next, and that in the meantime,"

"Resolved unanimously that all magistrates and other officers of justice in this state, who are well affected to the liberties of America, be requested, until further orders, to exercise their respective offices, provided that all processes and other their proceedings be under the authority and in the name of the State of New York."

"Resolved unanimously that all persons abiding within the State of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state, and that all persons passing through, visiting, or making a temporary stay in said state, being entitled to the protection of the laws during the time of such

"That all persons, members of or owing allegiance to this state, as before described, who shall levy war against the said state, within the same, or be adherent to the King of Great Britain, or others, the enemies of the said state, within the same, giving to him or them aid or comfort, are guilty of treason against the state, and being thereof convicted, shall suffer the pains and penalties of death."

The tenants gave in evidence the acts of the Legislature of New York: "For the forfeiture of the estates of persons who adhered to the enemies of the state," &c., passed 22 October, 1779; the "act supplementary to the act to provide for the temporary government of the southern part of this state," &c., passed 23 October, 1779, and the supplement thereto, passed 27 March, 1783.

Robert Richard Randall died in the City of New York between 1 June and 1 July, 1801, having on 1 June of that year made his last will and testament, probate of which was regularly made in the City of New York.

The provisions of the will of Robert Richard Randall under which the tenants claimed their title are the following.

"6. As to and concerning all the rest, residue and remainder of my estate, both real and personal; I give, devise and bequeath the same unto the Chancellor of the State of New York, the Mayor and Recorder of the City of New York, the President of the Chamber of Commerce in the City of New York, the President and Vice President of the Marine Society of the City of New York, the senior minister of the episcopal church in the said city, and the senior minister of the presbyterian church in the said city, to have and to hold all and singular the said rest, residue, and remainder of my said real and personal estate, unto them the said Chancellor of the State of New York, Mayor of the City of New York, the Recorder of the City of New York, the president of the chamber of commerce, president and vice president of the marine society, senior minister of the episcopal church, and

senior minister of the presbyterian church in the said city for the time being and their respective successors in the said offices forever, to, for, and upon the uses, trusts, intents and purposes, and subject to the directions and appointments hereinafter mentioned and declared concerning the same, that is to say out of the rents, issues and profits of the said rest, residue, and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an asylum, or marine hospital, to be called 'the Sailor's Snug Harbor,' for the purpose of maintaining and supporting aged, decrepid, and worn out sailors, as soon as they, my said charity trustees, or a majority of them, shall judge the proceeds of the said estate will support fifty of the said sailors, and upwards; and I do hereby direct, that the income of the said real and personal estate, given as aforesaid to my said charity trustees, shall forever hereafter be used and applied for supporting the asylum, or marine hospital, hereby directed to be built, and for maintaining sailors of the above description therein, in such manner as the said trustees, or a majority of them, may from time, or their successors in office, may from time to time direct. And it is my intention that the institution hereby directed and created should be perpetual and that the above mentioned officers for the time being, and their successors should forever continue and be the governors thereof and have the superintendence of the same. And it is my will and desire that if it cannot legally be done according to my above intention by them without an act of the legislature, it is my will and desire that they will as soon as possible apply for an act of the legislature to incorporate them for the purposes above specified. And I do further declare it to be my will and intention, that the said rest, residue, and remainder of my real and personal estate, should be at all events applied for the uses and purposes above set forth, and that it is my desire all courts of law and equity will so construe this my said will, as to have the said estate appropriated to the above uses, and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons,

should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified."

"And lastly, I do nominate and appoint the Chancellor of the State of New York for the time being, at the time of my decease; the Mayor of the City of New York, for the time being; the Recorder of the City of New York, for the time being; the president of the chamber of commerce, for the time being; the President and Vice-President of the Marine Society in the City of New York, for the time being; the senior minister of the episcopal church in the City of New York, and the senior minister of the presbyterian church in the said city, for the time being; and their successors in office after them, to be the executors of this my last will and testament, hereby revoking all former and other wills, and declaring this to be my last will and testament."

It was admitted that at the time of the decease of Robert Richard Randall and of the probate of the will, the offices named in the will were respectively filled by different persons, and that they or some of them, immediately upon the death of the testator, entered upon the premises under the will, claiming to be the owners in fee, until the Legislature of New York, on their application, on the 6th of February 1806, passed "an act to incorporate the trustees of the marine hospital, called the Sailor's Snug Harbor, in the City of New York."

Those offices continued to be filled respectively by different persons, from the time of the death of the testator until the time of the trial.

The act incorporating "the trustees of the marine hospital,", &c., provides,

"Whereas it is represented to the legislature that Robert Richard Randall, late of the City of New York, deceased, in and by his last will and testament, duly made and executed, bearing date 1 June in the year of our Lord 1801, did, after bequeathing certain specific legacies therein mentioned, among other things give and devise and bequeath all the residue of his estate, both real and personal, unto the chancellor of this state, the Mayor and Recorder of the City of New York, the President of the Chamber of Commerce

in the City of New York, the President and Vice President of the marine society of the City of New York, the senior minister of the episcopal church in the said city, and the senior minister of the presbyterian church in the said city, for the time being, and to their successors in office respectively, in trust, to receive the rents, issues and profits thereof, and to apply the same to the erecting or building on some eligible part of the land whereon the testator then resided, an asylum, or marine hospital, to be called 'the Sailor's Snug Harbor,' for the purpose of maintaining and supporting aged, decrepid and worn out sailors, as soon as the said trustees, or a majority of them, should judge the proceeds of the said estate would support fifty of such sailors and upwards, and that the said testator, in his said will, declared his intention to be, that the said estate should at all events be applied to the purposes aforesaid, and no other; and if his said intent could not be carried into effect without an act of incorporation, he therein expressed his desire that the said trustees would apply to the legislature for such incorporation; and whereas the said trustees have represented that the said estate is of considerable value, and if prudently managed will in time enable them to erect such hospital and carry into effect the intent of the testator, but that as such trustees, and being also appointed executors of the said will, in virtue of their offices, and only during their continuance in the said office, they have found that considerable inconveniences have arisen in the management of the said estate from the changes which have taken place in the ordinary course of the elections and appointments to those offices, and have prayed to be incorporated for the purposes expressed in the said will, and such prayer appears to be reasonable, therefore"

"1. Be it enacted by the people of the State of New York, represented in Senate and assembly, that John Lansing, Jr., the Chancellor of this state, De Witt Clinton the Mayor, and Maturin Livingston, the Recorder of the City of New York, John Murray the President of the Chamber of Commerce of the City of New York, James Farquhar the President, and Thomas Farmer the First Vice President of the Marine Society

of the City of New York, Benjamin Moore senior minister of the episcopal church in the said city, and John Rogers, senior minister of the presbyterian church in the said city, and their successors in office respectively, in virtue of their said offices, shall be and hereby are constituted and declared to be a body corporate, in fact and in name, by the name and style of the Trustees of the Sailor's Snug Harbor in the City of New York, and by that name they and their successors shall have continual succession, and shall be capable in law of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever and in all manner of actions, suits, complaints, matters and causes whatsoever, and that they and their successors may have a common seal and may change and alter the same at their pleasure, and also that they and their successors, by the name and style aforesaid, shall be capable in law of holding and disposing of the said real and personal estate, devised and bequeathed as aforesaid, according to the intention of the said will; and the same is hereby declared to be vested in them, and their successors in office for the purpose therein expressed, and shall also be capable of purchasing, holding, and conveying any other real and personal estate for the use and benefit of the said corporation in such manner as to them or a majority of them shall appear to be most conducive to the interest of the said institution."

The second section gives to the trustees the power to make rules and regulations and to appoint officers for the government and business of the corporation, and provides for the mode of transacting the same.

The third section declares that "this act shall be deemed and taken to be a public act, and be construed in all courts and places benignly and favorably for the purposes therein intended."

On 25f March, 1814, an act supplementary to the act of incorporation was passed declaring that persons holding certain offices should act as trustees and declaring it to be the duty of the corporation to make an annual report of

their funds to the common council of the city of the state of their funds.

The counsel for the tenants gave in evidence the act of the Legislature of New York "for relief against absconding and absent debtors," passed 4 April, 1786, and a report made to the Superior Court of Judicature of the State of New York of proceedings under the act against Paul Richard Randall, by which he was declared an absent debtor.

Under this act, all the estate, real as well as personal, of Paul Richard Randall, as an absent debtor, of what kind or nature soever the same might be, were, on 13 November, 1800, attached, seized, and taken, and were, by the Recorder of New York, under and in pursuance of the provisions of the law, upon 22 December, 1801, by an instrument of writing under his hand and seal, conveyed to Charles Ludlow, James Brewerton, and Roger Strong, all of the City of New York, to be trustees for all the creditors of the said Paul Richard Randall, who afterwards duly qualified as trustees.

Subsequently, on 14 April, 1808, upon a further application to the recorder of New York, Paul Richard Randall being still absent, other trustees are appointed according to law who were on the same day qualified to act as trustees.

The demandant gave in evidence the following rules of the Supreme Court of Judicature of the people of the State of New York:

"February 17, 1804"

"In the matter of Paul Richard Randall, an absent debtor."

"On reading and filing the petition of Alexander Stewart, White Matlack, and Catherine Brewerton, agents and attorneys of the said Paul Richard Randall, and also reading and filing the answer of Charles Ludlow, James Brewerton, and Roger Strong, trustees for all the creditors of the said Paul Richard Randall, to the said petition, and on motion of Mr. Hamilton, attorney of the said Alexander Stewart, White Matlack, and Catherine Brewerton, it is ordered by the court that the said trustees pay to the said Paul Richard Randall

or to his said agents and attorneys, for his use, the sum of $5,500, out of the moneys now remaining in the hands of the said trustees."

"August 9th, 1804."

"In the matter of Paul R. Randall, an absent debtor, and his assignees, &c."

"On reading and filing the petition of Alexander Phoenix, the attorney and agent for Paul Richard Randall, together with a certified copy of the power of attorney, and the acknowledgements of the trustees and former attorneys of the said Paul, thereunto annexed, and on motion of Mr. Van Wyck, of counsel for the said Alexander, ordered that the rule heretofore, in February term last, made in the said matter, be vacated, and that the said sum of $5,500, acknowledged to be still remaining in the hands of the said Charles Ludlow, James Brewerton, and Roger Strong, trustees as aforesaid, be paid over by them to the said Alexander Phoenix, as the attorney and agent of the said Paul Richard Randall."

It appeared in evidence that Catherine Brewerton died sometime in or about the year of our Lord 1815, and that Paul R. Randall died sometime in the year of our Lord 1820, Catherine Brewerton, having first, while a widow, made her last will and testament dated 5 June, A.D. 1815, duly executed and attested to pass real estate, and devised among other things as follows, that is to say:

"Secondly, I give, devise and bequeath, all my estate, real and personal, whatsoever and wheresoever, in law or equity, in possession, reversion, remainder or expectancy (excepting such as is herein otherwise specially mentioned) unto my executors hereinafter named and to the survivor of them, his heirs and assigns forever, upon trust nevertheless for the uses and purposes hereinafter mentioned and intended, that is to say, that my executors shall,"

&c.

Upon the trial of the cause in the circuit court, the judges were opposed in opinion upon the following points, which were certified to the court:

I. Whether, inasmuch as the count in the cause is for the entire right in the premises, the demandant can recover a less quantity than the entirety.

II. Whether John Inglis, the demandant, was or was not capable of taking lands in the State of New York by descent, which general question presents itself under the following aspects:

1. Whether, in case he was born before 4 July, 1776, he is an alien, and disabled from taking real estate by inheritance.

2. Whether, in case he was born after 4 July, 1776, and before 15 September of the same year, when the British took possession of New York, he would be under the like disability.

3. Whether, if he was born after the British took possession of New York, and before the evacuation on 25 November, 1783, he would be under the like disability.

4. What would be the effect upon the right of John Inglis to inherit real estate in New York if the grand assize should find that Charles Inglis, the father, and John Inglis, the demandant, did, in point of fact, elect to become and continue British subjects and not American citizens?

III. Whether the will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant in any respect, the premises being, at the date of the will and ever since, held adversely by the tenants in this suit.

IV. Whether the proceedings against Paul R. Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in the trustees appointed under the said proceedings, or either of them, so as to defeat the demandant in any respect.

V. Whether the devise in the will of Robert Richard Randall of the lands in question is a valid devise, so as to divest the heir at law of his legal estate, or to affect the lands in his hands with a trust.

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